The Thomas dissent that broke my heart

As law professors go, I’m pretty sympathetic to Clarence Thomas’s constitutional jurisprudence. It’s not that I agree with him, which I almost never do. But I think he genuinely tries to apply originalism using historical methods.

And when it comes to the law of race, where again I disagree with Thomas, I respect his effort to give voice to a distinctive form of conservative black nationalism that insists on color blindness because it’s better for blacks.

What’s more, I respect what I’ve seen of Thomas personally. I’ve never forgotten seeing him greet by name the members of the maintenance staff at the Supreme Court who polish the miles of brass on the court’s many staircases. Once I asked him about it, and he said he sometimes felt he had more in common with them than with the other justices. I didn’t think it was a line then, and I don’t think so now.

But now I confess to feeling a bit upset about Thomas’ solo dissent in Foster v. Chatman on Monday, a decision that reversed the capital conviction of a black man from Georgia because the prosecution used its peremptory challenges to strike all the black members of the jury pool.

Thomas is from Georgia. The facts of the case, going back almost 30 years, demonstrate egregious racial stereotyping by the prosecution. Yet Thomas was unwilling to join his seven colleagues, among them some serious conservatives, in striking down the conviction.

Why, exactly, did Thomas bend over so far backward to argue for sending inmate Timothy Foster to his death? And is there something — anything — admirable that can be gleaned from his dissenting opinion?

There was a technical issue at stake in the case — namely, whether the state supreme court decision denying the prisoner’s claim was based on state or federal law. On this point, Thomas’s view is defensible, if unconvincing.

Foster was convicted for the heinous sexual assault and murder of Queen Madge White in Rome, Ga., in 1986, almost 30 years ago. He appealed through the Georgia courts, relying among other arguments on the claim that the prosecution systematically excluded all the black jurors in violation of the Supreme Court’s opinion in Batson v. Kentucky, a landmark 1986 decision.

The Georgia courts denied Foster’s claim because he couldn’t prove the exclusions were motivated by race. But when Foster re-presented his claim in his post-conviction habeas corpus proceeding, he had more evidence to support it. Foster now had documents showing that the prosecution actively identified and marked the black prospective jurors (with a capital B) and excluded them from the jury based on their race.

A superior court in Georgia rejected Foster’s claim anyway, saying that he hadn’t shown new facts sufficient to overturn the conviction. Foster then went to the state supreme court, which denied his claim in a single sentence.

The Supreme Court won’t review a state court judgment if it rests on what lawyers call “adequate and independent state grounds.” The idea is that the court is the highest authority on federal law and the U.S. Constitution, but state supreme courts are the highest authorities on state law.

But as Chief Justice John Roberts wrote in his doctrinally subtle opinion for the court, the Georgia Supreme Court never said it relied on state law grounds to deny Foster’s claim. Its silence left Roberts the option of concluding that the state court had rested its judgment on the federal constitutional law issue of whether the Batson precedent had been violated. That allowed the court to hear the case.

Roberts then went on to assess the evidence. He concluded that the prospective jurors were indeed excluded based on race, invalidating the conviction.

Thomas’s dissent started with the technical issue. He said that the “most obvious” reason for the Georgia court dismissing the case was that Foster had already litigated it. Georgia bars successive relitigation of the same issue at the habeas stage. This, said Thomas, meant there was an adequate and independent state ground for the judgment — and the court had no business hearing the case.

Thomas’s argument here was what I would call wrong but reasonable. Probably the Georgia high court did reject the claim as already litigated. But it’s the job of a court to say what it’s doing — particularly when a man’s life is on the line and there has been notable racism in obtaining his conviction. The state court’s silence is and should be sufficient basis for the Supreme Court to hear the case.

Where Thomas really made me sad was in his attitude toward the underlying issue of whether the conviction was tainted. He went through the black potential jurors excluded and systematically accepted the prosecutors’ excuses for challenging them. He urged deference to the trial judge’s judgment, and he discounted the documentary evidence, saying it wasn’t clear who had highlighted or marked the black potential jurors’ names on the list that was in the prosecutors’ files.

To all this I can only say: Really?

I appreciate that Thomas wants to keep his judgment free of any bias that might arise because of his own race. In this he follows the model of Justice Felix Frankfurter, who (echoing St. Paul) said that “as judges we are neither Jew nor Gentile, neither Catholic nor agnostic.”

But race neutrality shouldn’t be race blindness. Thomas’s decision shows he isn’t willing to bend his usual rigor to save a black defendant, which is perhaps worthy of a kind of admiration. But the facts here are so clear that Thomas’s dissent makes it seem like he bent over too far to seem fair — and in the process would have sacrificed the integrity of the judicial system, not to mention a man’s life.

Noah Feldman is a professor of constitutional and international law at Harvard.

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